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Rajendra Prasad Brothers Ltd v FAI Insurances (Fiji) Ltd [2002] FJHC 220; HBC0205r.2001s (9 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0205 OF 2001

Between:

RAJENDRA PRASAD BROTHERS LIMITED
Plaintiff

and

FAI INSURANCES (FIJI) LIMITED
Defendant

Mr. B.C. Patel for the Plaintiff
Mr. F. Haniff for the Defendants

DECISION
(Chamber application for
Leave to appeal from interlocutory order
and leave to appeal out of time)

Applications

By Summons filed in Court on 31 May 2002 Fai Insurances (Fiji) Limited (the >defendant=) seeks Orders as follows:

THAT it may be granted leave to appeal to the Court of Appeal from the Order of the Honourable Mr Justice D Pathik in this matter delivered on 7 May 2002 and entered on 13 May 2002 AND THAT the time for bringing such appeal be extended until such time as this Honourable Court determines the Applicant/Defendant=s application for leave to appeal AND THAT proceedings in the High Court be stayed in the meantime and in the event that such leave is granted until the delivery of the judgment of the Court of Appeal on any appeal brought in terms of such leave.

The grounds on which the defendant relies on leave to appeal are set out in great detail in the said summons. The Ground 6 was deleted to read: AHis Lordship erred in law in holding that the originating summons procedure was appropriate in these proceedings despite the disputes of fact that exist in the affidavit evidence before the Court@. These grounds can be summarized in nine words, that is, that I as the Judge erred in law in every aspect of the case.

The Summons was supported by just one affidavit of Peter Fimone who is the Claims Manager of the defendant company. All he says, which is of any substance, is that the defendant wants to appeal to Court of Appeal against my decision herein of 7 May 2002 wherein I refused the defendant=s application under Order 28 Rule 9(1) of the High Court Rules 1988 that this matter be continued as if begun by writ. The defendant contended that the originating summons procedure was inappropriate in these proceedings.

All that Fimone deposes to in his affidavit which is of any moment is AIf the High Court proceeds to determine the substantive matter under the Plaintiff=s originating summons, the Applicant/Defendant=s application for leave to appeal and, if leave is granted, its appeal against the decision of the learned Judge would be futile as the basis of the Applicant appealing his Lordship=s decision is the inappropriateness of the originating summons procedure in these proceedings@.

The decision impugned

On 7 May 2002 I gave a comprehensive decision when I said, inter alia:

In the circumstances of this case, in the exercise of my discretion, I disallow the defendant=s application as it would be an exercise in futility and a sheer waste of time; it will unnecessarily prolong the determination of the issue. In short the issue can be determined quite easily on affidavit evidence alone and without having to call oral evidence which the defendant wants.

I further said (at p13 of my decision) that >on the affidavit evidence before me, bearing in mind certain admissions by the defendant and the facts including those which can be >judicially noticed= there is sufficient evidence to determine the substantive issue under the Originating Summons procedure=. I concluded by saying that >the originating summons procedure is quite appropriate and there is no need to grant the Order sought, namely, that these proceedings continue as if begun by writ under Order 28 r.9 of the High Court Rules 1988.=

Defendant=s submission

In his submission on >leave to appeal= the learned counsel for the defendant Mr. Haniff referred the Court to a number of authorities on the principles applicable upon which leave to appeal an interlocutory decision is granted.

He submitted that the general principle is that leave will not be granted except in cases of incorrect application of the law, or where the order was made in disregard of principle, or with a misapprehension as to the facts or where the order was >plainly= wrong.

Mr. Haniff then dealt with each of the grounds of appeal citing authorities which concentrated wholly on where he alleges the Court erred in law. In short his whole argument boils down to saying that there are so many disputed facts in this action that the originating summons procedure is not appropriate. It was the same argument which was advanced previously on which I have given a decision and is now proposed to appeal against. However, as I indicated to Counsel, it is not for me to go into the merits of the case in this application and also that I have already dealt with the issues which he is raising in his grounds in support of his application. It is now for the Court of Appeal, if granted leave, to hear him on those matters and not for me.

Counsel further submitted that he admits that the onus is on the defendant to prove that exclusions in Clause 5.1(b) apply. He says that the defendant has maintained throughout these proceedings that the only way it could prove that the exclusions apply is by calling oral evidence of witnesses to and participants of events of 19 May 2000.

Counsel further submits that injustice would be done if the defendant were not permitted to call witnesses, either voluntarily or by subpoena, regarding the events of 19 May 2000 to establish the applicability of the exclusion clause.

For these reasons he is seeking leave to test the Court=s decision on whether the originating summons procedure is appropriate in these proceedings

Plaintiff=s submission

The learned counsel for the plaintiff submitted that the Court did not determine any substantive rights but in the exercise of its discretion gave its decision which is interlocutory on a matter of >practice and procedure=.

On application for extension of time to appeal, Mr. Patel says that it has come too late and no Agood reasons@ have been shown to warrant such an extension.

The facts relating to time are that the defendant filed its application on 31 May 2002 and the time for appeal was expiring on 4 June 2002. So the application was filed 3 days before expiry of time limit knowing full well that such an application could not be called, let alone determined within the permitted time.

On the grant of leave counsel submits, inter alia, that the requirement for leave is designed to reduce appeals from interlocutory orders as much as possible (per Murphy J in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 442). A party appealing against such an order made in the exercise of a discretion upon a matter of practice and procedure undertakes a Aformidable task@ [Lenijamar Pty Ltd v HGL (Advances) Ltd (1990) 98 HLR 200 at 206].

Mr. Patel further submits that even if the order is seen to be clearly wrong, this is not sufficient. It must be shown, in addition, to Aeffect a substantial injustice by its operation@ (per Murphy J in Niemann (supra) at 441). Counsel also referred to a case which I decided, namely, Edmund March v Bank of Hawaii & Others (unreported FCA 25 of 2000, delivered 10.10.2000) where as a single Judge of Appeal I said that in respect of an interlocutory order leave is seldom given except where there are exceptional circumstances warranting it. Mr. Patel says that that situation does not prevail here. Counsel submits that the defendant will not suffer any injustice, and if it succeeds on appeal after substantive hearing, there will be a retrial. It will not be left without a remedy.

Mr. Patel submits that the defendant has not made out a case for extension or for leave and so both applications should be dismissed with costs to the plaintiff.

Determination of the issue

There are two applications before me, namely: (i) extension of time to appeal out of time and stay and (ii) leave to appeal from an interlocutory order.

I shall deal with (ii) above first and (i) above is dependent on whether or not I grant leave to appeal.

Both counsel made oral and written submissions and I have carefully considered their arguments. I have already stated hereabove what the affidavit in support of the summons says.

The principles

The application for leave to Court of Appeal is made under section 12(2)(f) of the Court of Appeal Act which provides (inter alia):

A12(2) No Appeal shall lie -

(f) without the leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a judge of the Supreme Court (now High Court) except in the following cases, namely: .... ......@

This application as I see it is not only on >interlocutory= order but also one of Apractice and procedure@. Here there was an exercise of discretion by the Court on a point of >practice and procedure=. I find that the following passage from the judgment of the High Court of Australia in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. & Anor, [1981] HCA 39; [1918] 148 CLR 170 at 177 wherein is repeated with approval the oft-cited statement of Sir Frederick Jordan in Re Will of F.B. Gilbert (dec=d) [1946] NSWStRp 24; [1946] 46 SR (NSW) 318 at 323 pertinent:

A...I am of the opinion that,...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon inference with the order of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal.@ (emphasis mine)

Even in Salmond on Jurisprudence 10th Ed. (1947) p.476, difference between substantive law and procedural law have been described thus:

ASubstantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated@.

It was stated in Adam Brown (supra) at 177 that:

A.... that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. ..... Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties,..... For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various.@ (emphasis mine)

This is an application for leave to appeal against the said interlocutory order which I made.

As can be seen from the wording of the said s12(2)(f) leave will not generally be given from an interlocutory order unless the Court sees that some injustice will be done. The Courts have therefore laid down certain principles upon which this leave will be granted. In Hawkins v Great Western Railway [1895] 14 R.360 Rigby, L.J at 362 said: A.....It is only where a potent mistake is pointed out, or where it is made clear that there is some injustice which ought to be remedied, that leave should be granted@.

On the authorities, Mr. Haniff for the defendant has to satisfy the Court that Asubstantial injustice will be done by leaving that erroneous decision unreversed@ (William J in Perry v Smith 27 V.L.R 66 at 68; followed by Full Court (Winneke C J) in Darrel Lea (Vic.) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR at 401). On the affidavit evidence before me I am not satisfied that any >substantial injustice= would be done.

As stated above, courts are reluctant to interfere with interlocutory orders. This is what the then President, Fiji Court of Appeal (Sir Moti Tikaram) said in Kelton Investments Limited and Tappoo Limited and 1. Civil Aviation Authority of Fiji 2. Motibhai & Company Limited, Civil Appeal No. ABU0034.1995:

The Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given. Having read the affidavits filed and considered the submissions made I am not persuaded that this application should be treated as an exception. In my view the intended appeal would have minimal or no prospect of success if leave were granted.

Again in Totis Inc Spor (Fiji) Limited & Anor. v John Leonard Clark & Anor (FCA No. 35 of 1996 at 15) Sir Moti Tikaram said:

Ait has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principles by granting leave only in the most exceptional circumstances@.

Further in considering leave to appeal from an interlocutory order I have found a very useful guide in the following extract from the judgment in Ex parte Bucknell [1936] HCA 67; 1936 56 C.L.R. 221 at 226:

AAt the same time it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for leave to appeal under sec.35(1)(a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations which should be regarded as a justification for granting leave to appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment.@

In goes on to state at p.225 that:

ABut any statement of the matters which would justify granting leave to appeal must be subject to one important qualification which applies to all cases. It is this. The court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.@ (emphasis mine)

On the need for grant of leave the Master of Rolls, Sir Thomas Bingham in First Tokyo Index Trust Ltd v Morgan Stanley Trust Co. & Ors (the Times Law Report, 6.10.95 C.A.) said:

The requirement of leave was a filter to obviate the expenditure of money and court time on appeals which had no hope of success.

The decision whether to grant leave was usually made in the first instance on paper by the single lord justice who would refuse leave if of clear opinion that the appeal was not arguable.

Bearing in mind the principles to be applied on an application of this nature and considering the authorities referred to hereabove, I am clearly of the view that the defendant does not have a chance of success on appeal. When I say this I bear in mind the following words of Lord Woolf M.R in Smith v Cosworth Casting Processes Ltd (The Times Law Report, The Times 28.3.97)

A court was entitled to grant an application for leave to appeal even if it was not satisfied that the appeal had any realistic prospect of succeeding.

There might be many other reasons why the court thought it desirable that the appeal should proceed. It was a misconception to assume when only one reason for granting leave was mention by the court that it was the only reason.

The court would only refuse leave if satisfied that an applicant had no realistic prospect of succeeding on the appeal. The Ano realistic prospect@ test was not meant to be any different from the test which was sometimes called Ano arguable case@.

Apart from hammering the Court where it has erred in law without any relevant authority, Mr. Haniff has not advanced any good reason to convince the Court to enable it to lean in the defendant=s favour. If anything, my previous decision has set out in considerable detail my reasons for coming to the decision particularly in the matter of >practice and procedure= in the exercise of my discretion. An application under Or.28 r.9(1), similar in kind to the present, fell to be determined by me in Dharam Singh & Ors. v Hardayal Singh & Ors. 40 FLR p156, to which reference was made by both counsel. There on the subject of >disputed facts=, the point laboured by Mr. Haniff in this application, I said at 158:

According to my interpretation, where Rule 4(2)(b) provides that proceedings Ain which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons@, it merely says Aappropriate@ meaning, according to dictionary meaning >correct= or >suitable=, does not preclude commencing an action by originating summons where there are disputed facts. It does not say that it >must= issue as in Or 5 r.3. (underlining mine)

Even Rule 4(1) provides that Aproceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate@.

Also in Halsbury=s Laws of England 4th Ed. Vol 37 at para 559 it is stated, inter alia:

AWhere it appears to the court at any stage of proceedings begun by originating summons that they should for any reason (Footnote: E.G. because a substantial issue of fact is likely to arise on which oral evidence will be required for which the ordinary trial procedure is more suitable) be continued as if begun by writ, it may order proceedings to continue as if so begun, even if the cause or matter in question could not in fact have been begun by writ.@ (emphasis mine)

From what I have said on this aspect, it should not be understood that I am delving into the merits of the case for it is not in my province to do so at this stage except to point out that the application is unmeritorious and futile. I cannot look into the correctness or otherwise of the order intended to be appealed against. However, again as Sir Moti Tikaram, the then President, Court of Appeal said in The Public Service Commission v Manuvavalagi Dalituicama Korovulavula, Civil Appeal No. 11 of 1989 said at p.5:

AHowever if prima facie the intended appeal is patently unmeritorious or there are clearly no arguable points requiring decision then it would be proper for me to take these matters into consideration before deciding whether to grant leave or not.@

However, in the case before me it is my respectful view that the grounds for appeal are >unmeritorious= and there are no >arguable= legal issues of any importance which require some authoritative decision. I do not see how the applicant will be prejudiced if leave is refused. It will still have the opportunity to put its case fully before the Court during the hearing of the substantive action. It will have the right of appeal if unsuccessful.

From the oral submission made by the Plaintiff I gain the distinct impression that the defendant is still fishing for witnesses so to say who could testify on its behalf in relation to exclusion clause in the insurance policy for he talks about getting witnesses on subpoena not knowing whether these so-called birds in the bush will give evidence in his client=s favour or not. No affidavit evidence bearing on the alleged dire need to call oral evidence of persons who are unnamed has been disclosed. The defendant should come clean and disclose all that needs to be disclosed to convince the Court that there is some substance in his argument which merit further consideration by the Court.

Extension of time to appeal

The defendant applies for an extension of time within which to appeal against my said decision of 7 May 2002 herein, to which the plaintiff objects stating that under Rule 16 of the Court of Appeal Rules an appeal against an interlocutory judgment or order must be filed within 21 days of the date of the Order is sealed. Mr. Patel says that the Rules say nothing about how, or when, the leave is to be obtained. But, he says that it is clear from Rule 16 that if the appeal is to be filed within 21 days of the sealed Order then leave must also be obtained within that period and that it is not sufficient to merely file an application within the 21 days.

In this case the defendant filed its application on 31 May 2002, the time for appeal was expiring on 3 June 2002. In other words the application was filed 3 days before the expiry of the time for appeal.

In any case on an application for leave to appeal out of time, it was held in Director of Public Prosecutions v Jikar Ali 21 FLR (1975) p115 that Asubstantial reasons would need to be advanced before such an enlargement would be granted and in the present case there were no proper grounds for granting the application@.

Similarly, in the case before me no proper grounds for granting the application exists. The grant of leave to appeal out of time is entirely a matter for the discretion of the Court. The following passage from the judgment of Privy Council in Ratnam v. Cumaraswamy and Another 1964 3 All E.R. 933 at p.935 is to be borne in mind:

AThe rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation@.

Applying the above principles the application for leave to appeal out of time is refused.

Stay

Since I have decided to refuse leave to appeal from the interlocutory order, there is no need for me to deal with the stay application as there will be nothing to be stayed pending any proposed appeal.

Conclusion

To sum up, having heard arguments from both counsel, I am not satisfied that the defendant has established the principle that the Court was >wrong= and that >substantial injustice= would be done by the alleged erroneous decision. Also the intended appeal does not raise any point of law of any general importance requiring the attention of the Court of Appeal at this stage. The defendant will have the opportunity to appeal to Court of appeal, if aggrieved, from a final order or judgment. Hence no injustice will result if leave was refused on the present application. The defendant therefore fails at the very threshold on its application for leave to appeal.

Orders

I, therefore, make the following orders -

(a) Summons for leave to appeal refused

(b) Extension of time to appeal refused

(c) Application for stay Order pending appeal dismissed

(d) Defendant to pay plaintiff costs of the proceedings before me which I fix at $500.00.

D. Pathik
Judge

At Suva
9 August 2002